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NOTICE: SLIP OPINION (Not the Court's Final Written Decision) NOTICE: SLIP OPINION (not the court’s final written decision) The opinion that begins on the next page is a slip opinion. Slip opinions are the written opinions that are originally filed by the court. A slip opinion is not necessarily the court’s final written decision. Slip opinions can be changed by subsequent court orders. For example, a court may issue an order making substantive changes to a slip opinion or publishing for precedential purposes a previously “unpublished” opinion. Additionally, nonsubstantive edits (for style, grammar, citation, format, punctuation, etc.) are made before the opinions that have precedential value are published in the official reports of court decisions: the Washington Reports 2d and the Washington Appellate Reports. An opinion in the official reports replaces the slip opinion as the official opinion of the court. The slip opinion that begins on the next page is for a published opinion, and it has since been revised for publication in the printed official reports. The official text of the court’s opinion is found in the advance sheets and the bound volumes of the official reports. Also, an electronic version (intended to mirror the language found in the official reports) of the revised opinion can be found, free of charge, at this website: https://www.lexisnexis.com/clients/wareports. For more information about precedential (published) opinions, nonprecedential (unpublished) opinions, slip opinions, and the official reports, see https://www.courts.wa.gov/opinions and the information that is linked there. For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. This opinion was flhr~ fen- rrtm at. 6~ Q0~11 on,Jw.,l~?Jit1 (SW)~~ SUSAN L. CARLSON SUPREME COURT CLERK IN THE SUPREME COURT OF THE STATE OF WASHINGTON STATE OF WASHINGTON, ) ) Respondent, ) NO. 92475-9 ) v. ) ) EN BANC DONALD ORMAND LEE, ) ) Petitioner. ) Filed JUN 1 5 2017 ________ ) FAIRHURST, C.J.-Donald Ormand Lee was convicted on two counts of third degree rape of a child. RCW 9A.44.079. Before trial, Lee moved to cross­ examine the victim, J.W., about a prior false rape accusation she had made against another person. The trial court permitted Lee to ask J.W. if she had made a false accusation to police about another person, but it prevented Lee from specifying that the prior accusation was a rape accusation. Lee claims this violated his confrontation clause rights. U.S. CONST. amend. VI. Lee also contends the four year delay between his initial arrest and the trial constitutes a manifest constitutional error warranting review for the first time on appeal. Lastly, Lee challenges the trial court's imposition of legal financial obligations (LFOs ). For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Lee, No. 92475-9 Because the State's legitimate interests in excluding prejudicial evidence and protecting sexual assault victims outweighs Lee's need to present evidence with minimal probative value, the trial court did not abuse its discretion when it prevented Lee from specifying that J.W. had falsely accused another person of rape. When the court permitted Lee to cross-examine J.W. about her prior false accusation, it provided Lee with an adequate opportunity for confrontation. Limiting the scope of that cross-examination was within the court's discretion. Further, because Lee was not actually restrained and because charges had not been filed, the four year delay between his initial arrest and the trial is not a manifest constitutional error warranting review for the first time on appeal. We therefore affirm the Court of Appeals in part. However, we remand the case for consideration of Lee's ability to pay LFOs. I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY On October 9, 2009, Lee was arrested on suspicion of third degree rape of a child. The victim, J.W., told police she engaged in various sex acts with Lee, whom she knew only as "'Rick,"' during the summer of 2008. Clerk's Papers (CP) at 1. On October 14, 2009, the court released Lee because no charges were filed. For the next two and a half years, Lee's case "fell through the cracks." lB Report of Proceedings (RP) (Part B, Dec. 19, 2013) at 201. The Kelso Police Department initially investigated the allegations, but transferred the case to the 2 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Lee, No. 92475-9 Cowlitz County Sheriffs Office after determining it was outside the city's jurisdiction. The sheriffs office received the report from the Kelso Police Department in March 2009. A detective did some "sporadic" work on the case but retired in April 2010. Id. Lee's case then went unnoticed until May 2012, when Detective Brad Thurman discovered it while reviewing unassigned cases. In March 2013, Lee was arrested again on suspicion of third degree rape of a child based on the same allegations from 2009. On March 6, 2013, the State charged Lee with five counts of third degree rape of a child. RCW 9A.44.079. Each count alleged Lee engaged in sexual intercourse with J.W., age 15, between June and October 2008. Each count also alleged as an aggravating factor that the offense "was part of an ongoing pattern of sexual abuse of the same victim . manifested by multiple incidents over a prolonged period of time." CP at 6-8; RCW 9.94A.535(3)(g). Lee pleaded not guilty. The trial commenced on December 18, 2013. Before trial, Lee moved to introduce evidence that J.W. previously fabricated a rape allegation against another individual. A police report showed that on June 11, 2008, J. W. and her mother called the Kelso Police Department, alleging that J. W. had been raped by a classmate. The next day, J.W. and her mother called again to 3 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Lee, No. 92475-9 explain that J.W. "had made up the story regarding the rape" and that the sex "was consensual." CP at 17. The trial court speculated that J.W. 's prior false statement is admissible under ER 608 1 to demonstrate J.W.'s character for untruthfulness but also potentially prohibited by the rape shield statute as past sexual behavior: "So, you know, part of me says, under ER 608 it comes in, but under the rape shield statute, part of me says it should not come in. So I'm a little bit unsure." IA RP (Dec. 18, 2013) at 29. To strike a "fair balance between those two competing interests," the court permitted Lee to ask J.W. if she had made a prior false accusation about another person to police. Id. at 33. However, the court prohibited Lee from specifying that it was a rape accusation or mentioning any past sexual behavior: [A]s far as the issue of [J.W.] ... making a -- a false accusation about being -- to the police, I'm going to allow that, that she made a false accusation about another person to the police. The cross examination or the redirect, however it comes out[,] would be limited in that she could talk about her motivations, maybe she was scared, uncertain and 1 "Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' credibility ... may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross examination of the witness ( 1) concerning the witness' character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified." ER 608(b). 4 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Lee, No. 92475-9 she promptly rectified it the very next day and there will be no mention of any ... sexual conduct in -- in any way. Id. J.W. was the State's main witness at trial. J.W. testified that in June 2008, she received an unusual phone call from a man identifying himself as "'Rick.'" Id. at 57. J.W. later identified the defendant as "Rick," explaining she never knew him as Lee. Id. at 61. Lee asked to meet J.W. in person and gave her his telephone number. J.W. agreed to meet Lee at Tam O'Shanter Park in Kelso, Washington. After their first meeting at Tam O'Shanter Park, J.W. testified she and Lee began having regular sexual interactions. Typically, Lee would pick up J.W. after summer school and drive somewhere to engage in oral and vaginal sex. J.W. testified she would also perform oral sex on Lee while he drove. Lee always drove the same black Camara or Thunderbird. They would usually go to either Tam O'Shanter Park or Riverside Park. On one occasion, they went to a residence in Castle Rock that Lee claimed was his ex-girlfriend's house. J.W. remembered petting two cats at the Castle Rock house. J.W. also remembered visiting the residence that Lee shared with his mother. J.W. met Lee almost every day after summer school from June through September 2008. They did not have sex every day, but J.W. estimated they had sex "more than ten [but] less than thirty" times during that summer. Id. at 82. J.W. 5 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Lee, No. 92475-9 provided specific details for some of these interactions.
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